I think this amendment is a good thing. It clears up confusion and
puts the law in-line with industry practice. It actually puts Federal
law closer to California law [1].
I think we will all agree that employees in computer fields
(sysadmins, devs, etc.) are professionals. The law has exemptions for
specific professions; law, architecture, engineering, teaching. The
Federal "Professional" exemption does not cover sysadmins, there is an
exemption for software developers [2].
A lot of tech employees are covered by the "Administrative"
exemptions. Here are some of the administrative exemptions in
California [3]:
"1. Who customarily and regularly exercised discretion and independent
judgment; and
2. Who regularly and directly assists a proprietor, or an employee
employed in a bona fide executive or administrative capacity, or
3. Who performs, under only general supervision, work along
specialized or technical lines requiring special training, experience,
or knowledge, or
4. Who executes, under only general supervision, special assignments
and tasks, and
5. Who is primarily engaged in duties which meet the test for the exemption."
The problem is that some IT professionals, especially at large
organizations, don't get to "exercised discretion and independent
judgment", even if they are fairly senior. This has resulted in major
lawsuits, and employees getting back-pay.
At lower levels of IT I think it is reasonably for an employee to be
non-exempt (hourly with overtime), things like help desk or junior
desktop support. The minimum salary requirements of Federal and
California law should protect junior employees. Anyone who is really a
professional, like sysadmins, should be exempt. This amendment closes
a hole in the law, and removes ambiguity.
[1]
http://www.dir.ca.gov/dlse/Glossary.asp?Button1=E#employee%20in%20the%20computer%20software%20field
[2] http://www.dol.gov/whd/regs/compliance/fairpay/fs17a_overview.htm
[3] http://www.dir.ca.gov/dlse/Glossary.asp?Button1=A#administrative%20exemption
-Anton
On Wed, Nov 16, 2011 at 7:17 PM, Paul Graydon<[email protected]> wrote:
If you are, soon you might not be able to.
Courtesy of Matt Simmons:
http://www.standalone-sysadmin.com/blog/2011/11/usa-computer-professionals-update-act/
SEC. 2. AMENDMENT TO THE FAIR LABOR STANDARDS ACT OF 1938.
Section 13(a)(17) of the Fair Labor Standards Act of 1938 (29 U.S.C.
213(a)(17)) is amended to read as follows:
‘(17) any employee working in a computer or information technology
occupation (including, but not limited to, work related to computers,
information systems, components, networks, software, hardware, databases,
security, internet, intranet, or websites) as an analyst, programmer,
engineer, designer, developer, administrator, or other similarly skilled
worker, whose primary duty is--
‘(A) the application of systems, network or database analysis techniques and
procedures, including consulting with users, to determine or modify
hardware, software, network, database, or system functional specifications;
‘(B) the design, development, documentation, analysis, creation, testing,
securing, configuration, integration, debugging, modification of computer or
information technology, or enabling continuity of systems and applications;
‘(C) directing the work of individuals performing duties described in
subparagraph (A) or (B), including training such individuals or leading
teams performing such duties; or
‘(D) a combination of duties described in subparagraphs (A), (B), and (C),
the performance of which requires the same level of skill;
who is compensated at an hourly rate of not less than $27.63 an hour or who
is paid on a salary basis at a salary level as set forth by the Department
of Labor in part 541 of title 29, Code of Federal Regulations. An employee
described in this paragraph shall be considered an employee in a
professional capacity pursuant to paragraph (1).’.
The bill is barely started on it's journey, but if it passes I imagine it
might have quite an impact putting hourly paid IT staff in a position where
they can no longer get paid overtime.
Paul
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